Why EB-5 is better
An article written by Ronald Klasko, Governing Board Member of the Investment Migration Council and Managing Partner of Klasko Immigration Law Partners for the IM Yearbook 2025.
The U.S. residence-by-investment program (EB-5) has seen good times and bad times. If there is anything for certain in this field, it is that the good times will not last forever.
The EB-5 Reform and Integrity Act (RIA) of 2022 provided a long term (five-year) extension of the regional centre programme. It also included a grandfather provision to make certain that investors who file before the expiration of the extension in September 2026 will be able to complete their Green Card process even if the programme is not extended.
The RIA provision allowing for concurrent filing of I-526 and I526E investor EB-5 petitions with I-485 adjustment of status to permanent resident applications created a whole new market of EB5 investors. The ability to obtain an employment authorisation document and a travel document relatively quickly after the concurrent filing has been a game changer.
However, if USCIS believes that investors had a ‘preconceived intent’ to immigrate when they came as visitors, the adjustment of status could be denied and, even worse, there could be a finding of fraud. Closely tied to concurrent adjustment is the fact that the quota for all countries in the reserved visa category established by the RIA (rural, high unemployment TEA, infrastructure) is current. The fact that the quota is current is a function of delays.
As long as immigrant visas are not issued, the quota should remain current; and concurrent adjustment, which requires quota availability, will continue as an option.
The RIA created ’priority processing’ for investors in rural projects. What we have discovered is that USCIS is processing rural petitions very rapidly – often within less than six months. This means that, with concurrent adjustment, the entire Green Card process can be completed in roughly one year. This provision allows an investor to file for adjustment of status even if they overstayed or violated their status for up to 180 days.
The RIA provisions give investors far greater confidence that their investment funds will be used for their intended purpose and that they will accomplish their goal of obtaining a permanent Green Card and hopefully a return of their investment funds.
The RIA for the first time provided protection for ’good faith investors’ who are prejudiced by the termination of a regional centre or the ’debarment’ of the project. USCIS has confirmed its interpretation that this statutory provision applies to pre-RIA investors. Unfortunately, USCIS limited debarment relief to fraudulent – and not merely failed – projects.
The long-term extension of the regional centre programme, coupled with high interest rates from traditional sources, has made EB-5 a very attractive financing option for many developers. The choice of quality EB-5 projects has perhaps never been as numerous as it is today. So, yes, these are the good times for EB-5. Enjoy it while it lasts.
“The RIA provisions give investors far greater confidence that their investment funds will be used for their intended purpose and that they will accomplish their goal of obtaining a permanent Green Card and hopefully a return of their investment funds.”
